HARSHAD SINGH@ BABA PAHALVAN SINGH THAKURA versus STATE OF GUJARAT

HARSHAD SINGH@ BABA PAHALVAN SINGH HJAKURA

STATE OF GUJARAT

September 17, 1976

[P. N. BHAGWATI, V. R. KRISHNA !YER AND S. MURTAZA FAZAL ALI, JJ.]

Indian Penal Code, S. 34-Specific evidence for infliction of falal wound not • l"eq11ired-Comm11nity nf intent with participatory presence fixes col!S'l"llctive liability.

Practice find proced11re-/11terference with findinus on reliability of Cl'idence oulv in exceptional circ1nnstances.

Four persons were tried by the Sessions Court for offences punishable under s. 302 read with s. 34 l.P.C. and s. 135 of the Bombay Police Act. Two of the accused were acquitted by the Sessions Court and one by the High Court. having been given the benefit of doubt of identity.

The appellant contended before this Court that there was no specific evidence of his having inflicted the fatal stab, and also that since three out of the four accused were acquitted, the invocation of s. 34 was impermissible. The findings on the reliability of evidence were also questioned.

Dismissing the appeal, the Court

HELD : ( l) When murderous assault by many hands with many knives has ended fatally, it is legally impermissible to dissect the serious ones f:om the others and seek to salvage those whose stabs have not proved fatal. The circumstance that one man':; stab falls on less or more vulnerable part of the person of the victim is of no consequence to fix the guilt for murder. S. 34 l.P.C. fixes constructive liability in case of community of intent coupled with parti~ipatory presence or operation, and even if some of several accused are acquitted but the participating presence of plurality of assailants is proved, fhe conjoint culpability for the crime is inescapable. [629B-D, F]

Amir Hussain v. Stale of U.P. A.LR. 1975 S.C. 2211, Maina Si11!ih v. Slate of Rajasl/ian, A.LR. 1976 S.C. 1084. Classic legal shorthand for con,;tructive criminal liability by Lord Sumner, referred to.

(2) Only if there is perversity, miscarriage of justice, shocking misreading or gross-misapplication of the rules, procedural and substantive, or other excep-tional circumstan~es, the review jurisdiction of the Supreme Court may be invoked. [627 A-C]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 254 of 1976.

(Appeal by Special Leave from the Judgment and Order dated 8-12-1975 of the Gujarat High Court in Crl. Appeal No. 557 of 1976).

L. C. Goyal for the Appellant.

G. A. Shah and Miss Radha Rangaswamy for the Respondrrit.

The Judgment of the Court was delivered by

KRISHNA IYER, J. Judicial summitry, when the subject of dispute is re-appraisal of evidence even on the sophisticated ground of mis-appreciation, has to submit itself to certain sclf-rcstrnining mks of

HARSHADSINGH P. THAKURA v. GUJARAT (Krishna Iyer, J.) 627

processual symmetry. The trial Court directly sees the witnesses testify and tests their veracity in the raw. The appellate Court, enjoy-ing co-extensive power of examination, exercises it circumspectly, looks for errors of probative appraisal, oversight or omission in the m.:ord and makes better judgment on the totality of materials in the light of established rules of criminal jurisprudence. As the case ascends higher, forensic review is more rarefied. Such being the restrictive approach, the Supreme Court cannot be persuad-ed, without stultifying the system of our judicature, to go over the ground of reading the evidence and interpreting it anew so as to up-hold that which appeals to it among possible alternative views. If there is perversity, miscarriage of justice, shocking misreading or gross-misapplication of the rules, procedural and substantive, we interfere without hesitation. Of course, other exceptional circums-tances also may invoke our review jurisdiction. These prefatory .observations have become necessary since, usually appellants, hope-fully slurring over these jurisdictional limitations, argue the whole way before us as if the entire evidence is at large for de nova examina-tion. Such procedure has been attempted in the present case and, for reasons just mentioned, we are disinclined to rip open the depositions to re-discover whether the evidence is reliable or not. single survivor figures as the appellant before us, from among four persons who were tried by the Sessions Court, Baroda, for ·offences punishable under ss. 302 read with s. 34 IPC and s. 135 of the Bombay Police Act. Accused 3 and 4 secured acquittal before the Sessions Court and accused 2 won his appeal before the High Court. Concurrent findings of guilt notwithstanding, the first accu-.sed has secured special leave by jail appeal.

Shri L. C. Goyal, appearing as amicus curiae, has urged before us that the appellant is entitled to acquittal like the rest of the accuc sed. The few facts, to explain why we make short shrift of this case, may be narrated. The murderous episode, preceded some days earlier by minor incident, which took place on February 7, 1974 :at about 10.30 p.m. The deceased Vasant and his friends were re-turning from the side of cinema house, Krishna Talkies. Sitting on the footpath and in keeping with the hour and the company, the group took hot drinks, the deceased having consumed considerable potions. The drunk was !eel by his comrades towards his house when bunch of persons including the four accused confronted them. tipsy altercation often sparks the plug of tantrums and violence. Here the prosecution version is that accused No. I Baba and the deceased Vasant began the brawl with heated verbal ex-change, followed by mutual fisting but climaxed by the 1st accused planting his knife on the left chest of the victim. The others too joined in the attack, accused 2 with knife and accused 3 with fist. The last man only shouted to incite them into giving blows. Har-dly had the victim Vasant fallen when the accused assailants took to their heels. The injured was shortly hospitalised but soon suc-cumbed to his wounds. Eye-witnesses testified, medical evidence was adduced and the homicide brought beyond rea,onable doubt.

The trial court had framed charges with offences under s. 302 read with s. 34 IPC. The post-mortem certificate revealed two trans-verse incised wounds penetrating the chest cavity. There were quite few other incised wounds in less lethal parts of the anatomy, However, in the opinion of the doctor all the injuries were ante-mortal and the chest wounds were sufficient in the ordinary course of nature to cause death. The deceased passed away due to shock anti haemorrhage caused by the stab wounds, especially on the chest. Both the courts below have affirmed in substance the case set forth by the prosecution about the occurrence. Concurrent findings of fact carry considerable weight at the Supreme Court level that to shake our credence is too demanding forensic exercise. Shri Goyal persistently drew us into the details of testimony to persuade us into contrary conclusion from that recorded by the trial Oourt and, after due examination, approved by the High Court.

While the murder is the tragedy, the discovery of the murderer beyond doubt is the judicial function. So much so, the essential enquiry _turned on who the culprits were. The learned Sessions Judge absolved accused nos. 3 and 4 of the offences on the score of absence of reliable evidence on record as regards any part played by accused nos._ 3 and 4'. Nevertheless, he held accused nos. 1 and 2 to be guilty of jointly murdering Vasant taking the view that they 'had taken under and unfair advantage of the fact that the deceased was unarmed, and had acted in cruel manner by inflicting 7 or 8 injuries with knives'. _The sentence that followed however was rigorous imprisonment for life on the ameliorative circumstance that the attackers had acted in the heat of passion. The High Court, in fair discharge of its appellate function, sedulously studied the evidence bearing on the murder and the murderers. Hardly any flaw in appreciation has emerged from the argument of the coun-sel for the appellant, in regard to the truth of the occurrence and no-thing short of grave mistakes or palpable omissions can induce us to dissent from this finding. Even so the High Court has been at great pains to screen the testimony with reference to their credibility, motiva-tion and probability so that their finding may not be faulty on the score of insufficient evidence of involvement of any of the two accused. Such searching scrutiny yielded fruitful result for the second accused and he drew the dividend of acquittal at the High Court level on account of mistakes of the 'might-have-been' category. We express no opin-ion as to whether every dubious 'maybe' or passing hesitancy can be exalted to the level of 'reasonable doubt' in criminal jurisprudence. The conviction of the gµilty is as much part of the administration of justice as the acquittal of the innocent. The judicial art takes no sides where the truth is in fair measure manifest. Anyway, accused no. 2 having been acquitted, we are concerned with the solitary, appel-lant before us.

Counsel Shri Goyal pressed upon us what he regarded as sure-fire contention that if there was no specific evidence of the appellant having inflicted the fatal stab on the chest he was entitled to share the

acquittal with the rest even if there was abundant proof of several per-sons including him having set upon the deceased and killed him using lethal weapons, In the present case more than one knife was used, more than one man was in the attacking party and more than one incised wound was inflicted. While we can make short work of the submission by holding, as we do, that there is clear testi-mony that the chest stab which was fatal in the ordinary course was the handiwork of the appellant, we, make the legal position clear that when murderons assault by many hands with many knives has ended fatally, it is legally° impermissible to dissect the serious ones from the others and seek to salvage those whose stabs have not proved fatal. When people play with knives and lives, the circumstance that one mati's stab falls on less or more vulnerable part of the person of the victim is of no consequence to fix the guilt for murder. Conjoint complicity is the inevitable inference when gory group animated by lethal intent accomplish their purpose cumulatively. Section 34 IPC fixing constructive liablility conclusively silences such refined plea of extrication. (See Amir Hussain v. State of U. P. ('), Maina Singh v. State of Rajasthan (2). Lord Sumner's classic legal shothand for constructive criminal liability, expressed in the Miltonic verse 'They also serve who only stand and wait' fortiori embraces cases of common intent instantly formed, triggering plurality of persons into an adventure in criminality, some hitting, some missing, some splett-ing hostile heads, some spilling drops of blood. Guilt goes with community of intent coupled with participatory presence or operation. No finer juristic niceties can be pressed into service to nullify or jetti-son the plain punitive purpose of the Penal Code.

Counsel also argued that since three out of the four accused have secured acquittal the invocation of s. 34 is impermissible. The, flaw in this submission is obvious. The Courts have given the benefit of doubt of identity but have not held that there was only one assailant in the criminal attack. The proposition is plain that even if some out of several accused are acquitted but the participating presence of ylur~lit.Y of assailants is proved, the conjoint culpability for the cnn!e 1s mescapable. Not that the story of more than one person havmg attacked the victim is false, but that the identity of the absolved accused is not firmly fixed as criminal participants. Therefore it follows that such of them, even if the number dwindled to one as are shown by sure evidence to have knifed the deceased deserve' to be convicted for the principal offence read with the const~uctive provision.

We therefore hold that the appeal deserves to be and is hereby dismissed. We appreciate the unsuccessful but industrious enthu-siasm of Shri L. C. Goyal who has served as amicus curiae.

Before parting with this case we may draw attention to socio-logical th?ught. There is evidence in the case of high spirits and consumpt1011 of alcohol. Intoxicating beverages subvert sobriety and

(I) A.IR. 1975 SC 2211.

(2) AIR 1976 SC 1084.

the drinking habit which begins with enjoyment of exuberance csc~1-lates into consumption of intemperate potions by tempting degrees ultimately holding the bacchanalian votary captive. The deleteriou, nexus between alcohol and violent crime is fairly obvious and these days, when drunken delicts and delinquencies are alarmingly on th~ increase, the State must be doubly concerned to control intoxicating liquors as part of the strategy of defusing crime cxplo>ion and as proof of bearing true faith and allegiance to Art. 4 7 of the Directive Principles of State Policy.

Appeal dismissed.

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